Pro
se plaintiff Samuel S. Upthegrove is proceeding in this
case on claims that security and medical staff at the
Columbia Correctional Institution (“CCI”)
violated his rights under the Eighth Amendment by failing to
protect him from self-harm on June 7, 2010. Before the court
is a motion for partial summary judgment filed by two of the
defendants: Leslie Baird and Kurt Schwebke. (Dkt. #11.) In
the order below, the court denies that motion because there
are genuine disputes of material fact that must be resolved
by a jury. The court also denies a motion filed by plaintiff
for assistance in recruiting counsel (dkt. #20) because he
has not shown that the complexities of this case exceed his
ability to litigate it. Accordingly, this case shall proceed
to trial as scheduled.

At all
times relevant to this lawsuit, plaintiff Samuel Upthegrove
was confined by the Wisconsin Department of Corrections at
CCI. Dr. Kurt Schwebke was employed as a psychologist at CCI
from November 2003 until June 2011, and then again from
December 2011 until August 2012. Lesley Baird was employed as
a psychological associate at CCI from May 24, 2010 until
October 8, 2011.

B.
Segregation and Observation at CCI

CCI has
three segregation units: Disciplinary Segregation 1 (DS1);
Disciplinary Segregation 2 (DS2); and the Special Management
Unit (Unit 7). DS1 houses inmates who (1) have just arrived
in segregation, or (2) are having behavioral problems. DS1
includes observation cells located in the back of the unit in
close proximity to the officer's station or
“bubble, ” which allows the officers to monitor
those inmates more closely. DS2 is a “step-down”
unit that houses inmates who have been in DS1 and shown a
positive adjustment in their behavior. Finally, Unit 7 serves
a variety of purposes, but mainly houses mentally ill and
vulnerable inmates.

Observation
status is very restrictive and used for the purpose of
preventing an inmate from inflicting harm upon himself or
someone else. An inmate may be placed in observation status
by a clinician, crisis intervention worker, physician, the
Warden, a registered nurse, or physician's assistant,
when he threatens or engages in acts of self-harm. An inmate
may also be placed in observation status by the security
director or shift captain for the same reasons if a
clinician, crisis intervention worker, or physician is not
available for consultation either directly or by telephone.

Each
segregation unit has an assigned psychologist or
psychological associate. Psychological staff members conduct
routine rounds in the segregation units, during which they go
to an individual cell front and talk to the inmate.
Psychological staff may see an inmate at his cell front more
than once a week if staff or the inmate requests it.

While
Dr. Schwebke worked at CCI, he was regularly assigned to
provide services to inmates on the DS1 unit. In evaluating
the risk of and potential treatment for self-harm by an
inmate in segregation, Dr. Schwebke considered factors such
as the inmate's history of self-harm, motivational
purposes of self-harm, frequency of thoughts of self-harm,
specific plan by the inmate for self-harm, potential for the
plan to be lethal, extent of intent to self-harm, opportunity
for self-harm, family contact or support, degree of
narcissism, future orientation, future plans and goals.
Options for addressing potential self-harm vary depending on
the particular individual, but could include observation
placement, restraints, or reference to the institution
psychiatrist regarding the use of psychotropic medications.

C.
Upthegrove's History of Self-Harming Behavior

Upthegrove
has a long history of self-harming behavior while
incarcerated, including cutting, biting and scratching
himself, as well as swallowing objects. At various times, he
had been prescribed Geodon, a psychotropic medication
intended to assist him with improved coping skills and better
control his emotions.

Dr.
Schwebke was aware of Upthegrove's history of self-harm,
but did not believe that Upthegrove was at risk of any
potentially lethal, self-harming behavior, such as attempted
hanging or infliction of severe wounds.[2] Upthegrove's
acts of self-harm have periodically required medical
treatment, though in Dr. Schwebke's experience working
with Upthegrove, he would usually alert staff when engaging
in serious self-injury.

During
the time he worked with Upthegrove, Dr. Schwebke believed
that Upthegrove's acts of self-harm were voluntary,
controlled, and done for secondary gain. In particular, Dr.
Schwebke believed that while Upthegrove was being housed on
DS1 for observation, his actual goal was to be transferred
back to Housing Unit 7, where he would be eligible for step 2
segregation time, or to be transferred to Wisconsin Resource
Center for treatment. Dr. Schwebke also thought Upthegrove
wanted to be placed in observation status because he hoped to
receive a more favorable disposition on pending conduct
reports or court cases. Not ...

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